Supreme Court Reinstates The Trump Travel Ban In Full Depending Appeal

 court_front_medYesterday, the Trump Administration secured two clear victories after the United States Supreme Court issued two orders lifting the lower court injunctions imposed on the travel ban.  I have written repeatedly on the travel ban (here and here and here and here and here and here and here and here) and my view that the case law supported the Trump Administration.  I thought that the appeal that reached the Supreme Court on the second round seemed likely to succeed while the third round was even stronger for the Administration.  The Administration had already secured an order with the Ninth Circuit reversing the trial courts in critical respects.  Now the Supreme Court restored the travel ban in its entirety pending appeal.  The orders issued shortly before appellate arguments on the merits this week is a further indication that the Administration is likely to prevail on the merits.  Indeed, while the orders do not dictate an outcome, they send a strong message to the lower courts on the skepticism of the Court.

When the Supreme Court lifted a significant part of the injunctions imposed by lower courts, there was a surprising footnote in the short order that I discussed at the time.  The Court indicated that the Trump Administration had not asked for an expedited hearing before October.  That set the travel ban up for what I described as “planned obsolescence” to expire shortly before the scheduled oral argument.

Buried in the order was the following line after the Court set the oral hearing for the start of the October session:  “The Government has not requested that we expedite consideration of the merits to a greater extent.”  So the Administration asked for expedition but did not push for a July argument, which would not be unprecedented. Instead, the Court set oral argument for the start of the October session.  Why?  If this is a matter of national security danger, one would expect at least a request for a July argument.

As discussed at the time, the answer would seem to be that the Administration was planning to issue a new travel order after the expiration (it would be smarter to wait for the passage of the 90 days to avoid arguments that the new order in any way worked in tandem with the prior order).  The new order would then be based on new information, new priorities, and likely cover additional countries. That would make it even more difficult to challenge.  The degree of reliance of lower courts on Trump’s campaign statements and tweets were always questionable.  Replaying “Golden Trump Oldies” on a new ban is unlikely to garner as much of a judicial audience.

After the Supreme Court order lifting the injunction, the expired ban barred citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen who could not show a “credible claim of a bona fide relationship with a person or entity in the United States” from entering the U.S. As I discuss, the new order could add additional countries to the list and identify other vetting concerns and procedures.  It did.

The new order issued Sept. 24 contains a new list of countries that dropped some of the original countries while adding new non-Muslim countries. For the record, I have long criticized the earlier orders against the travel orders as relying too heavily on campaign statements and too little on existing case law. I believe that the administration would have largely prevailed on the second order if the litigation were not mooted. The new opinions in Hawaii and Maryland offered basically the same narrative while ignoring the new factual foundation.

There is no question that President Trump continues to make the defense of these orders more difficult with his controversial tweets, including the recent retweeting of controversial videos from an extremist group in England. However, the materiality of these statements has become more and more forced with each new generation of agency findings. Agencies studied the vetting procedures for months and reached a consensus on the changes that they deemed necessary for border protection. Such factual findings are normally accorded deference by courts, which are bound not to substitute their judgment for policy or political choices.

Judge Chuang notably found that the administration may have met the “low bar” of establishing that entry from these countries would be “detrimental to the interests of the United States.” However, he insisted that the administration did not “explain why the broad travel ban is necessary in a way…unrelated to religious animus.” It is not clear how the administration is supposed to prove that, particularly after shouldering the burden on the detrimental impact to the nation’s security. The administration cited “inadequate identity management protocols, information sharing practices, and risk factors,” including need technological improvements.

The new orders allow, for the first time, the travel bans to go into full affect. They notably do not include the prior limitation imposed by the Court in June when the Court lifted most but not all of the injunctions.  At that time, three justices indicated that they wanted to lift the injunctions without limitations but the rest of the Court decided to preserve the injunction for those with established connections to the United States.  On this occasion, only Ruth Bader Ginsburg and Sonia Sotomayor dissented to allowing the travel ban to be enforced in its entirety.

While the orders relate to the injunctions and not the merits, the Court clearly rejected the lower court finding under the preliminary injunction standard that the challengers had shown a “likelihood of success on the merits” of the case. The Court could also have rejected the showing that the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities weighs in the plaintiff’s favor, or that a preliminary injunction is in the public interest.

I do not see how these orders cannot be taken as a strong indication of the view of the majority on the Supreme Court in favor of the authority claimed by the Administration.  Moreover, the orders contain a notable line that indicates that the Court wants this litigation brought to an end: “In light of its decision to consider the case on an expedited basis, we expect that the Court of Appeals will render its decision with appropriate dispatch.”  If the injunction decision is any indication, the Court may be thinking of dispatching more than the schedule in this long-running litigation.

17 thoughts on “Supreme Court Reinstates The Trump Travel Ban In Full Depending Appeal

  1. The related Supreme Court justices must be impeached and convicted for the crime of high office of usurpation of the power of the executive branch. Judicial “overreach” is treason. Modification of the Constitution through judicial “interpretation” is treason.

    “Manifest Tenor”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

  2. Regardless of whether you are for or against restricting immigration (this author, for what it’s worth, is against it), every country has the right to retain and exercise its sovereignty, and not be bound by the ideological whims of international bureaucracies. It’s not that humane treatment of migrants is ideological. Of course not. But the idea that individuals have a fundamental human right to immigrate into another sovereign state and, once arrived there, rights to government-sponsored programs, certainly is ideological. America is under no obligation to make agreements of that nature.

    http://thefederalist.com/2017/12/05/no-surprise-u-s-wants-u-n-migration-pact-given-europes-track-record/?utm_source=The+Federalist+List&utm_campaign=11d5385fd1-RSS_The_Federalist_Daily_Updates_w_Transom&utm_medium=email&utm_term=0_cfcb868ceb-11d5385fd1-79248369

  3. I would hope this administration keeps it’s sights on Canada as they welcome back its own citizens that went overseas to fight for the Islamic State.

  4. I suspect Hawaii will attempt another injunction petition regardless of the Supreme Court ultimately ruling in favor of the administration.

  5. http://www.businessinsider.com/chad-passport-paper-trump-travel-ban-2017-10

    The second and more compelling and publicy stated reason is somewhat detailed in the referecned article . A little research DB would have saved you making a blanked untrue statement.

    It’s clearly listed in a number of periodicals although not explained except for this one and this is a shodily written article at best.

    The core of the second reasons is ”

    “Homeland Security, working with the White House, pushed Chad onto the list without significant input from the State Department or the Defense Department, said a congressional official briefed on the process who wasn’t authorized to discuss it publicly and requested anonymity”.

    “In addition to lacking special passport paper, a Homeland Security official also said that Chad “does not adequately share public safety and terrorism-related information.”

    State apparently disagreed but were over ruled by DOHS who have rather broad powers given to them by the original and enhanced by Obama Patriot Act.

    There was also mention of a number of additions expected after the first 90 days and a removal as Chad is working to meet the standards applied to every country in the world.

    Now you have the rest of the story and not one cherry picked sensationalized portion.

  6. The US Supreme Court knows that the Ninth Circuit is LOADED with corrupt, skumbag, Leftists. (I know that’s a redundancy, and Leftist would suffice, but please deal with it.) They’re just a bunch of political hacks that hate the facts, hate evidence, and hate the law, as ALL Leftists do. However, as the SCOTUS is, itself, loaded with quite a few Leftists of its own, I do find it somewhat surprising and refreshing that they actually followed the law for a change.

  7. Either way I like the way the Supreme Court back handed the rogue judges who want to be one man dictatorships like the nut job from Hawaii and told them to shut up already. Hawaii to date is still listed as taking in only three immigrants and even the 9th Circuit finally had enough of Mr. ACLUeless. acting as proxy obstructionest for Soros, Pelosi and the progressively regressive left.

    The other good thing is it’s firmly in the hands and has the full attention of SCOTUS and they have issued their instructions. Getting that rather large smelly mess that far that fast was needed no matter how it turned out. Same as putting DACA square in the hands of Congress where it belonged years ago and forcing them to do their job was another achievement.

    Keep it uip we might regain a three branch with separate powers system of government again instead of that Fourth Branch does it all failure we are still too much saddled with.

  8. The Korematsu case from the WWII era needs to be discussed here. The President has the authority not only to exclude such a list of people but if they are here then to lock them up in a concentration camp out on the West Coast. Maybe surround San Francisco with a huge army and let them out one by one after vetting and lock them up if they deserve it.

  9. Chad? Do you know the inane reason that Chad is on this list?

    What a bunch of incompetents. Turn it all over to the Marx brothers to have it all done properly…

    • I didn’t see Chad mentioned in the text of this column, but it’s considered to be a failed state.
      It has that in common with most of the other countries mentioned in the “travel ban”.

      • Yes, the bureaucrats in Chad ran out of passport paper. For that reason only it was listed by the incompetents in Washington, DC.

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